AUSTRIA Law and Practice Contributed by: Gerhard Fussenegger and Florian Neumayr, bpv Huegel
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation The Austrian Cartel Act of 2005 (as amended) ( Kar- tellgesetz , the “Cartel Act”) contains the main provi - sions of Austrian merger control, eg: • the definition of a notifiable “merger” or “acquisi - tion” (Section 7 of the Cartel Act); • the turnover thresholds (Section 9 of the Cartel Act); and • the substantive test for mergers (Section 12 of the Cartel Act). Additionally, the Austrian Competition Act 2002 (as amended) ( Wettbewerbsgesetz , the “Competition Act”) also refers to merger control matters. The Federal Competition Authority or FCA ( Bun- deswettbewerbsbehörde ) provides guidance on its website (also in English) concerning basic aspects of merger control practice in Austria, including defining a merger, threshold values, notification requirements and pre-notification. The FCA, in co-operation with the German Bundeskar- tellamt (Federal Cartel Office or FCO), also published guidance on its transaction value-based notification threshold, as introduced in 2017 (including an English version). 1.2 Legislation Relating to Particular Sectors Following the Austrian Investment Control Act or “ICA 2020” ( Investitionskontrollgesetz 2020 ), which is based on Regulation (EU) 2019/452, the acquisition of (parts of) undertakings, shares, substantial influence or even assets of undertakings is notifiable under for - eign direct investment screening (“FDI screening”, see 9.1 Legislation and Filing Requirements ). For specific sectors, particular authorities also have to be notified of transactions. For example, with regard to the bank and insurance sector, the Austrian Finan - cial Market ( Finanzmarktaufsichtsbehörde or FMA), which acts pursuant to the Austrian Financial Market Authority Act ( Finanzmarktaufsichtsbehördengesetz or FMABG), must also be notified.
1.3 Enforcement Authorities Filings have to be made with the official parties ( Amt- sparteien ): the FCA and the Federal Cartel Prosecu - tor or FCP ( Bundeskartellanwalt ). The FCA is an inde - pendent body, whereas the FCP is subordinate to the Federal Minister of Justice. The FCA and/or the FCP are responsible for apply - ing to the Cartel Court ( Kartellgericht ) for an in-depth (Phase II) investigation of a notified transaction. The Cartel Court is the only competent authority that is legally entitled to substantively rule on the legality of a notified transaction, eg, by prohibiting it or by granting clearance. Decisions and orders of the Cartel Court can be appealed to the Supreme Cartel Court ( Kartel- lobergericht ). If the preconditions for filing are fulfilled (with regard to turnover thresholds, the type of transaction and an effect in Austria), notification prior to closing of the deal is compulsory in Austria, with no exceptions. 2.2 Failure to Notify Failure to notify a transaction is considered to be an infringement of the prohibition on implementation before clearance. In addition to nullifying the underly - ing transactional agreement, the Cartel Court, upon request of the FCA and/or the FCP, may impose fines on the undertakings concerned of up to 10% of their consolidated worldwide turnover. The Supreme Cartel Court has ruled that the failure to notify is generally considered a serious infringe - ment of competition law. In fact, failure to notify has been in the focus of the FCA’s practice in recent years. Concerning Meta’s failure to notify its acquisition of GIPHY, the Cartel Court, at the request of the FCA, imposed a fine of EUR9.6 million. The acquisition itself was cleared with remedies by the Cartel Court (follow - ing a Phase II review and as subsequently upheld by the Supreme Cartel Court). 2. Jurisdiction 2.1 Notification
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